Discretion Operationalized through Law: Proprio Motu Decision-Making at the International Criminal Court

Letters of Credit and Performance Bonds: How are these Popular Credit Enhancement Devices Applied in International Project Finance? From their Common Law Origins to their Application in Civil Law Systems – the Peruvian Case

From Recognition to Regulation: Access to In Vitro Fertilization and the American Convention on Human Rights

Constitutional Confines: Determining the Applicability of the Citizenship Clause to American Samoa Tuaua v. United States

Current Issue

Vol. 25.3 (December 2013)

The Case of Bolivia v. Chile in an Era of Transforming Sovereignty

Author: Solon Solomon

Citation: 25 Fla. J. Int’l L. 331

Abstract:

The advent of the twenty-first century has brought with it a change in the classical notion of sovereignty. Claims of sovereignty in a number of cases have questioned traditional doctrines around sovereignty loss and declaration.

Sovereignty is in a stage of transformation. The present Article examines the role of judicial bodies in sovereignty’s transformation and how international justice can contribute so that sovereignty patterns can more easily and smoothly transition to the new era. As such, the recently submitted application of Bolivia in the ICJ and the challenges it poses for Chilean sovereignty will be analyzed as an example. The Article will further analyze how a possible ICJ ruling favoring a synthesis of old and new perceptions around the notion of sovereignty would be in tandem and would also essentially contribute to the settlement of other disputes.

This Article does not attempt to examine the traditional ways territory is lost and acquired, as these have been documented in classical international law. On a similar, yet different note, this Article aspires to map how sovereignty, a broader notion which may or may not be associated with any changes in territorial status, is relinquished and acquired. As such, this Article will delineate sovereignty’s transformation from passive and idealist to aggressive and pragmatic. Furthermore, it will explore how these opposing poles can actually be combined in a synthesis promoted by the ICJ on occasion of the Bolivia-Chile litigation.

Discretion Operationalized through Law: Proprio Motu Decision-Making at the International Criminal Court

Author: Kaveri Vaid

Citation: 25 Fla. J. Int’l L. 359

Abstract:

The proprio motu power is a radical innovation of the Rome Statute. While prosecutors at prior international tribunals could select individual cases for investigation and prosecution, they could only operate within pre-established and rigid jurisdictional boundaries. Jurisdiction for these previous international criminal tribunals was pre-defined by political actors, and it generally focused on specific conflicts (World War II, Rwanda, the former Yugoslavia, Cambodia, Sierra Leone, and Lebanon). In contrast, article 15 of the Rome Statute (Statute) empowers the International Criminal Court (ICC) Prosecutor to proactively and independently direct the Court’s attention toward entire situations proprio motu, or on her own motion. This power is formidable in light of the Court’s sprawling jurisdictional mandate. A permanent entity with 122 state parties and counting, the Court can investigate and prosecute crimes committed either on the territory of a state party or by a national of a state party. The proprio motu power thus authorizes the Prosecutor to take independent action, without the sanction or trigger of any political actor, with respect to an expansive range of situations around the globe.

The Statute established particular criteria that a situation must satisfy before the Prosecutor may deploy this substantial power. The Statute first requires the Prosecutor to find a reasonable basis that crimes prohibited by the Statute have been committed, and that the situation would be admissible before the Court, taking into account concerns of gravity and complementarity. The Statute also allows the Prosecutor to decline to proceed, even if all of the above criteria are satisfied, if the interests of justice so demand. The Statute finally requires the Prosecutor to obtain judicial authorization from the Pre-Trial Chamber before initiating a proprio motu investigation.

While this statutory framework is rigorous, it leaves open a critical question: whether the Prosecutor has any discretion to decide whether to initiate proprio motu proceedings once she determines that a situation satisfies the statutory criteria, or whether instead the Prosecutor is compelled to seek Pre-Trial Chamber authorization to investigate all such situations. Particularly given the lack of precedent from prior international criminal tribunals, this statutory silence in practice opens the door for the Prosecutor to establish the boundaries of this discretion.

Domestic analogies are of limited utility in clarifying the amount of discretion afforded the ICC Prosecutor. Prosecutorial discretion is a familiar concept in many domestic criminal justice systems. However, in domestic systems, prosecutorial discretion is generally limited to decisions regarding individual cases. Domestic prosecutors are granted jurisdiction over pre-defined areas, and they can neither expand the boundaries of that jurisdiction nor attempt to narrow it. Like prosecutors at prior international criminal tribunals, domestic prosecutors generally have static jurisdictional mandates. And, generally, within that jurisdiction, domestic prosecutors are expected to investigate and prosecute all crimes, especially all serious crimes, and their jurisdictions are sufficiently circumscribed to make this expectation feasible.

There is no comparable expectation or possibility for the ICC Prosecutor. In fact, the Statute assumes exactly the opposite-that the Prosecutor will not investigate and prosecute all crimes within her jurisdiction. The complementary posture of the Court ensures that states retain the primary responsibility and authority to investigate and prosecute crimes within their jurisdictions, allowing the Office of the Prosecutor (OTP) to step in only when they fail to do so. The Prosecutor is only expected to act as a gap-filler, investigating only those situations where no genuine domestic action has been taken.

In addition, the ICC’s jurisdiction is dynamic, constantly able to grow and shift its boundaries as new states ratify the Rome Statute. Within this expansive mandate, the Prosecutor can, under article 15, trigger the Court’s action with respect to particular situations even if others remain uninvestigated, and even if international crimes are being committed throughout other swaths of the Court’s jurisdiction. Current debates about proprio motu selection discretion at the ICC reveal two competing options. The Prosecutor has suggested that no such discretion exists, arguing instead that the Statute compels her to seek authorization to open an investigation whenever she finds that the statutory requirements are satisfied. Many scholars argue the opposite: that constraints on the Court inevitably require the Prosecutor to exercise discretion when deciding which situations to investigate proprio motu, and that such discretion allows the Prosecutor to make essentially unguided political decisions.

This Article will challenge both of these positions. It will argue that the Prosecutor exercises at least some discretion when identifying situations for proprio motu action and that many structural aspects of the Court indeed require that she must. However, the Prosecutor has not relied on extra-statutory or political criteria to select from among admissible situations. Rather, the Prosecutor finds and deploys discretion through her independent capacity to interpret the statutory criterion of sufficient gravity.17 In this way, the Prosecutor has adopted a compromise position with regard to proprio motu decision-making, attempting to balance the structural realities and constraints facing the OTP and the Court as a whole with the statutory restrictions on the *364 nature and scope of the proprio motu power.

Letters of Credit and Performance Bonds: How are these Popular Credit Enhancement Devices Applied in International Project Finance? From their Common Law Origins to their Application in Civil Law Systems – the Peruvian Case

Author: Renzo E. Andrade

Citation: 25 Fla. J. Int’l L. 417

Abstract:

Two common credit enhancement devices used in international project finance, namely surety bonds and standby letters of credit, have their origins in the common law system. This Article will address their characteristics and how they are applied in a civil law system, specifically in Peru. I will analyze common problems and different approaches with regard to these devices in the context of an international project financing in Peru.
In Part I, I will define credit enhancement and briefly describe the several types of devices used in international project finance.

In Part II, I will address letters of credit, in particular standby letters of credit defining their nature and analyzing how they are different from independent guarantees. Moreover, I will tackle the nature of Peruvian Cartas Fianza Bancarias, ending this Part with an analysis of what instrument would be more beneficial to U.S. lenders and explaining how fraud is related to the standbys’ practice.

Part III tackles surety bonds. First, I will briefly address how they work in the United States and internationally, defining their nature and main characteristics. I will discuss the problem that arises when the surety decides not to pay the surety bond. In this Part, I will also describe the Peruvian Fianza, which is the closest instrument to a surety bond in Peruvian legislation. Finally, I will compare the benefits of surety bonds and Fianzas to U.S. lenders, concluding that because of serious enforcement problems derived from the accessory nature of this credit enhancement device, U.S. lenders should consider Cartas Fianza Bancarias instead of surety bonds or Fianzas when facing international project finance in Peru.

From Recognition to Regulation: Access to In Vitro Fertilization and the American Convention on Human Rights

Author: Martin Hevia; Carlos Herrera Vacaflor

Citation: 25 Fla. J. Int’l L. 453

Abstract:

During the last few years, the Americas have been the stage for intense public debate and various judicial rulings over the scope of reproductive rights and access to reproductive technology. Yet only as recently as 2012 and for the first time in its history, the Inter-American Court of Human Rights (IACHR) accepted a case on reproductive rights: “Artavia Murillo c. Costa Rica.” In this case, the Court considered whether an absolute prohibition on access to in vitro fertility treatments (IVF) could be compatible with the rights recognized in the American Convention on Human Rights (ACHR). Costa Rica was the only country among the ACHR States in which access to IVF has been explicitly and absolutely prohibited. Among the other Convention signatories, legislation is not uniform-some countries permit IVF, but regulate it; while in others, absent any specific regulation, IVF is, in fact, practiced.

Through its ruling the Court resolved the various debates that had been circulating both in the legislative arena and in the courts: among other issues, the Court decided that human embryos are not legal persons. It also scrutinized whether the right to life is absolute, or whether, in determined contexts, it should cede before other rights such as autonomy and privacy, and whether prohibiting access to certain medical treatments involves a form of discrimination that is prohibited by the Convention. Because of its important and far-reaching implications for the exercise of the human rights recognized by the ACHR, this ruling demands detailed analysis and discussion.

This Article considers the Court’s historic decision and the challenges that ACHR States parties face in developing IVF regulations that are consistent with the ruling. In Part I, we will focus on the case background. Part II explains the Court ruling in detail. In Part III, we shall ask what kinds of regulations to the practice of IVF would be compatible with the rights recognized in the ACHR. We will especially focus on the perspective of women’s right to health, the right to form (or abstain from forming) a family and we will consider aspects of the discussion involving the scope of anonymous donation. By way of conclusion, in light of the IACHR ruling, in Part IV we will offer some comments about possible next steps for Convention States Parties.

Plaintiffs, the Samoan Federation of America and a group of five non-citizen U.S. nationals born in American Samoa, brought this case in the U.S. District Court for the District of Columbia asserting that the Fourteenth Amendment’s Citizenship Clause extends to American Samoa and that people born in American Samoa are therefore U.S. citizens at birth. Defendants, the United States and the related parties that execute its citizenship laws, moved to dismiss Plaintiffs’ complaint for lack of subject-matter jurisdiction and failure to state a claim. The court HELD that it did have subject-matter jurisdiction over the matters and granted Defendants’ Motion to Dismiss for failure to state a claim, concluding that “[t]he Citizenship Clause does not guarantee birthright citizenship to American Samoans.”